Dr. Lischner voluntarily dismisses his First Amendment and invasion of privacy claims 1

against Officer Kehrle. Dr. Lischner also concedes that Pennsylvania law currently does not

provide a damages remedy for violations of the Pennsylvania Constitution, Jones v. City of

Philadelphia, 890 A.2d 1188, 1208 (Pa. Commw. Ct. 2006); Klump v. Nazareth Area Sch. Dist.,

425 F. Supp. 2d 622, 641-42 (E.D. Pa. 2006), but, expressly acknowledging that he prefers to

preserve his claims in the event that the Pennsylvania Supreme Court should permit such causes

of action in the future, he leaves to this Court the dismissal of those claims because they do not

now state a cause of action upon which relief can be granted.

 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HAROLD LISCHNER, : CIVIL ACTION

Plaintiff, :

 :

v. :

 :

UPPER DARBY TOWNSHIP and :

MICHAEL KEHRLE, :

Defendants : NO. 05-4546

MEMORANDUM AND ORDER

PRATTER, J. FEBRUARY 5, 2007

Dr. Harold Lischner sued Upper Darby Township and Police Officer Michael Kehrle

(collectively, “Defendants”) pursuant to 42 U.S.C. § 1983, alleging Officer Kehrle arrested him

in contravention of state law and the federal Constitution. Specifically, Dr. Lischner asserts that

(1) his 2003 arrest violated his rights under the Fourth and Fourteenth Amendments to the

Constitution; (2) Upper Darby proximately caused this violation of his rights because it failed to

properly train and supervise its law enforcement officers with respect to the legal cause required

to effect an arrest and the rights of citizens to engage in political expression; and (3) the

Defendants are liable to Dr. Lischner for the torts of false arrest and false imprisonment.1

The Defendants moved for summary judgment on all counts on behalf of both Officer

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 1 of 31
2

Kehrle and Upper Darby. Dr. Lischner opposes the motion with respect to his claim against

Upper Darby, and moved for partial summary judgment as to his claims against Officer Kehrle. 

For the reasons discussed more fully below, the Defendants’ Motion for Summary Judgment is

granted in part and denied in part, and Dr. Lischner’s Motion for Partial Summary Judgment is

denied.

BACKGROUND

On September 15, 2003, local supporters of President George W. Bush held an event at

the Drexelbrook Catering Facility, located within a privately owned residential community

known as “Drexelbrook.” The event was described as an occasion for the President to thank and

speak to supporters. It was a private, i.e., by invitation, event. Drexelbrook has been owned by

Drexelbrook Associates since 1959. Although Drexelbrook Associates has never dedicated its

property to public use, various portions of it are open to public, including commercial businesses

located on the premises. The Catering Facility is available for rental for events such as banquets,

weddings, and the like. Drexelbrook did not extend any formal invitation to the general public

for the President’s event but it designated an outdoor space on its property for members of the

public to gather to observe the arrival of the President’s motorcade, and permitted the public to

enter onto its property for this public prelude to the private event. Prior to the event, however,

Drexelbrook Associates instructed the Upper Darby Police Department that neither protesting nor

the displaying of signs would be permitted on its property. An area along the route of the

President’s motorcade on the public sidewalk outside of Drexelbrook was designated for

demonstrators and protestors.

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 2 of 31
 Auxiliary police officers are volunteers who assist the Upper Darby Police Department 2

with crowd control. They do not have arrest powers.

 The Court notes the possible ambiguity of the chest-sized sign with respect to Dr. 3

Lischner’s own political affiliation insofar as his message merely promoted an alternative policy

in and about Iraq other than as currently pursued. The text of the sign states nothing about the

President himself or the upcoming election. Dr. Lischner displayed no political party affiliation.

3

After receiving permission from an auxiliary police officer, Dr. Harold Lischner, then 78 2

years old, joined a group of approximately 50 members of the public gathered along the driveway

on Drexelbrook property in anticipation of the President’s motorcade. Dr. Lischner then placed a

torso-sized sign on the front of his chest with a message that stated: “Withdraw our troops from

Iraq. Give the $87 billion to the Iraqi governing council and UN for immediate relief and repair

of the destruction we caused.” Upon learning of Dr. Lischner’s sign, Officer Kehrle informed 3

Dr. Lischner that no signs or demonstrators were permitted, and if Dr. Lischner did not remove

the sign, he would have to leave the premises. Dr. Lischner refused to remove the message,

responding that he had a right to display it. There is no evidence that Dr. Lischner sought to

wave, vocalize or otherwise engage in anything other than this passive presentation of his

position. Officer Kehrle repeated his request several times for Dr. Lischner to remove the sign,

but Dr. Lischner continued to display it. Drexelbrook Associates’s private security personnel

then asked Dr. Lischner to leave the property. When Dr. Lischner refused to comply, Officer

Kehrle placed him under arrest for “Defiant Trespass,” 18 Pa. C.S. § 3503. Dr. Lischner was

handcuffed and taken to the Upper Darby Police Department headquarters.

Officer Kehrle actually charged Dr. Lischner with “Disorderly Conduct” instead of

“Defiant Trespass.” Subsequently, Dr. Lischner was released from custody and, after receiving a

summons, posted bond and pleaded not guilty to the charges. On November 18, 2003, Dr.

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 3 of 31
4

Lischner was found not guilty of “Disorderly Conduct.” This suit followed.

DISCUSSION

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if the evidence is such that a

reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it might affect the outcome of

the case under governing law. Id. 

A party seeking summary judgment always bears the initial responsibility for informing

the Court of the basis for the motion and identifying those portions of the record that demonstrate

the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the

moving party’s initial burden can be met simply by “pointing out to the district court that there is

an absence of evidence to support the non-moving party’s case,” id. at 325, or by offering

affirmative evidence which demonstrates that the plaintiff cannot prove his case, Lawrence v.

Nat’l Westminister Bank N.J., 98 F.3d 61, 69 (3d Cir. 1996). After the moving party has met its

initial burden, “the adverse party’s response, by affidavits or as otherwise provided in this rule,

must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

The evidence provided by the nonmovant is to be believed, and the Court must draw all

reasonable and justifiable inferences in the nonmovant’s favor. Anderson, 477 U.S. at 255. 

However, a nonmoving plaintiff cannot defeat a motion for summary judgment by merely

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 4 of 31
5

restating the allegations of the complaint, but instead must “point to concrete evidence in the

record that supports each and every essential element in his case.” Orsatti v. New Jersey State

Police, 71 F.3d 480, 484 (3d Cir. 1995) (citing Celotex, 477 U.S. at 322).

A. Fourth and Fourteenth Amendment Claims Against Officer Kehrle 

To succeed in a Section 1983 action, a claimant must prove that a person acting under

color of state law violated the claimant’s constitutional rights. Robb v. City of Philadelphia, 733

F.2d 286, 290-91 (3d Cir. 1984). Dr. Lischner contends that his arrest and detention by Officer

Kehrle were without probable cause and, therefore, in violation of the Fourth Amendment. An

arrest may violate the standards of the Fourth Amendment if it is made without probable cause to

believe that a crime has been committed. Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d

Cir. 1994). Thus, the proper inquiry in a Section 1983 claim based on false arrest is “‘whether

the arresting officers had probable cause to believe the person arrested had committed the

offense.’” Groman v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995). If the arresting

officer lacked probable cause to make the arrest, the arrestee also has a claim under section 1983

for “false imprisonment based on a detention pursuant to that arrest.” Id. at 636 (citing Thomas

v. Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988)). 

1. Probable Cause to Arrest

Typically, the existence of probable cause in a Section 1983 action is a question of fact. 

Wilson v. Russo, 212 F.3d 781, 796 (3d Cir. 2000) (citing Sherwood v. Mulvihill, 113 F.3d 396,

401 (3d Cir. 1997)); Groman, 47 F.3d at 635. A court, however, can conclude that probable

cause did not exist as a matter of law if the evidence viewed in the light most favorable to the

non-moving party would not reasonably support a finding of probable cause. See Sherwood, 113

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 5 of 31
 “The validity of an arrest is determined by the law of the state where the arrest 4

occurred.” United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002) (citing Ker v. California,

374 U.S. 23, 37 (1963)).

 The parties do not dispute, and the Court agrees, that it is irrelevant to the probable 5

cause analysis that Officer Kehrle ultimately did not charge Dr. Lischner with defiant trespass. 

See Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005) (concluding that “[i]t is

irrelevant to the probable cause analysis what crime a suspect is eventually charged with”);

Barna, 42 F.3d at 819 (holding that an arrest is lawful if there is probable cause for “any offense

that could be charged under the circumstances”).

6

F.3d at 401. It is the Court’s role to determine whether the objective facts available to the police

officer at the time of the arrest would justify a reasonable belief that an offense was being

committed. Victory Outreach Ctr. v. Melso, 313 F. Supp. 2d 481, 488 (E.D. Pa. 2004) (citing

Johnson v. Campbell,332 F.3d 199, 211 (3d Cir. 2003)). Thus, the Court must examine whether

any facts in the record reasonably support a finding of probable cause.

“Probable cause to arrest exists when the facts and circumstances within the arresting

officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe that an

offense has been or is being committed by the person to be arrested.” Merkle v. Upper Dublin

Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000) (citing Orsatti v. New Jersey State Police, 71 F.3d

480, 482 (3d Cir. 1995)). Thus, “the probable cause standard does not turn on the actual guilt or 4

innocence of the arrestee, but rather, whether the arresting officer reasonably believed that the

arrestee had committed the crime.” Radich v. Goode, 886 F.2d 1391, 1397 (3d Cir. 1989); see

also Barna, 42 F.3d at 819 (“The test for an arrest without probable cause is an objective one,

based on the facts available to the officers at the moment of arrest.”). Probable cause “is a fluid 5

concept – turning on the assessment of probabilities in particular factual context – not readily, or

even usually, reduced to a neat set of legal rules.” Paff v. Kaltenbach, 204 F.3d 425, 436 (3d Cir.

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 6 of 31
7

1999) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). Thus, courts must take a “common

sense” approach to the issue of probable cause and “a determination of its existence must be

based on the totality of the circumstances.” Id. (quoting Sharrar v. Felsing, 128 F.3d 810, 818

(3d Cir. 1997)).

The Defendants contend that Officer Kehrle had probable cause to arrest Dr. Lischner for

defiant trespass. The Pennsylvania Criminal Code defining the crime of defiant trespass, 18 Pa.

C.S. § 3503(b), provides in relevant part:

(1) A person commits an offense if, knowing that he is not licensed

or privileged to do so, he enters or remains in any place as to which

notice against trespass is given by:

(I) actual communication to the actor . . . .

(2) . . . [A]n offense under this subsection constitutes a misdemeanor

of the third degree if the offender defies an order to leave personally

communicated to him by the owner of the premises or other

authorized person.

Pa. C.S. § 3503(b). The statute, however, also provides an affirmative defense where “the

premises were at the time open to members of the public and the actor complied with all lawful

conditions imposed on access to or remaining in the premises.” 18 Pa. C.S. § 3503(c)(2)

(emphasis added). Police officers are charged with evaluating this affirmative defense when

assessing probable cause if, under the circumstances, they reasonably should have known of the

facts establishing an affirmative defense. See Estate of Dietrich v. Burrows, 167 F.3d 1007,

1010-12 (6th Cir. 1999) (citing Carroll v. United States, 267 U.S. 132, 162 (1925)) (rejecting

defendants’ argument that “police officers cannot be expected to analyze the merits of every

asserted affirmative defense prior to completing an arrest” on the ground that “[t]he law has been

clearly established since at least the Supreme Court’s decision in Carroll . . . that probable cause

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 7 of 31
 Contrary to the Defendants’ assertions, Radich, a case of undeniable significance here, 6

does not stand for the general principle that a police officer is never obligated to predict the

outcome of an affirmative defense – i.e., whether a landowner’s condition was unlawful. Rather,

the holding in Radich is limited to its facts; under the specific circumstances presented in Radich,

the court held that the legality of the condition imposed was not “readily discernible to a police

officer making arrests or city official formulating a policy to enforce private trespass rights.” Id.

at 1398. By contrast, for example, in Estate of Dietrich, the Court of Appeals for the Sixth

Circuit determined that the arresting officers in that case “had full knowledge of facts and

circumstances that conclusively established, at the time of the Dietrichs’ arrests, that the

plaintiffs were justified – by statute – in carrying concealed weapons during their work. Estate of

Dietrich, 167 F.3d at 1012. The Court held that “[c]onsequently, none of the defendants had

probable cause at the time of the arrests to believe the plaintiffs had violated, were violating, or

were about to violate the law.” Id. 

8

determinations involve an examination of all facts and circumstances within an officer’s

knowledge at the time of an arrest”) (emphasis in original).6

In the instant case, Dr. Lischner does not dispute that the essential elements of defiant

trespass were satisfied. Rather, Dr. Lischner contends that, given Officer Kehrle’s knowledge of

the facts and circumstances at the time of the arrest, a reasonable police officer in his position

would have known the “no signs or protesting” condition invoked by Drexelbrook was unlawful

and, therefore, that Dr. Lischner was not committing a crime. In the context of a summary

judgment motion, the burden is on Dr. Lischner to “show facts which support the affirmative

defense, but also that a reasonable police officer would know of these facts and conclude that

defiant trespass had not been committed.” Radich, 886 F.2d at 1396.

To establish the affirmative offense, Dr. Lischner must demonstrate that “the premises

were at the time open to members of the public” and that he “complied with all lawful conditions

imposed on access to or remaining in the premises.” 18 Pa. C.S.A. § 3503(c)(2); Radich, 886

F.2d at 1396. Here, it is undisputed that the Drexelbrook premises at issue were open to the

public at all times, including the evening of Dr. Lischner’s arrest. For example, it appears that

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 8 of 31
 On the evening of the President’s appearance, Drexelbrook prohibited signs and 7

protesting upon its property, and communicated this rule to its own security guards and to the

Upper Darby Police Department. The Upper Darby police department, in advance of the event,

orally communicated the “no signs or protesting” policy to its officers. There is no evidence in

the record as to whether the restriction was published or otherwise communicated to the public,

other than on an immediate, essentially one-on-one basis as actual events unfolded.

9

the driveway area where these events took place can be used by members of the public as they

walk across, onto or from the Drexelbrook complex. It is also undisputed that Dr. Lischner did

not comply with the condition imposed upon access for this event. Finally, it is undisputed that

Officer Kehrle knew that Drexelbrook was open to the public, and that signs and protesting on

the premises were prohibited on that particular evening. Thus, the question of probable cause

7

turns on “whether a reasonable police officer, under the facts and circumstances of this case,

would know that the condition was unlawful.” Radich, 886 F.2d at 1397.

This question, in turn, depends on whether the “no signs or protesting” condition imposed

by Drexelbrook was indeed lawful. The legality of such a condition is a question of law, Radich

886 F.2d at 1397, and, therefore, properly decided by the Court at the summary judgment stage

where, as here, the material facts as to that issue are not in dispute. For the reasons discussed

more fully below, the Court finds that Drexelbrook’s “no signs or protesting” policy was

unlawful. However, the probable cause analysis does not end there, because in order to find that

Officer Kehrle did not have probable cause to arrest Dr. Lischner, the Court also must find that a

reasonable police officer would have known the Drexelbrook policy was unlawful.

Even though Dr. Lischner withdrew his First Amendment claim, one might nonetheless

see this dispute as a product of the tension between two fundamental democratic and

constitutional values, namely, the rights attendant to ownership of private property and the rights

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 9 of 31
 It bears emphasis that the events in question do not involve a violation or potential 8

violation of a state or local law – rather, the offending conduct contravened a property owner’s

rules for a particular event.

10

of free expression and the right to petition the government. In the context of this case, that

tension would be described as whether the law enforcement arm of the state can be called upon to

give voice to the directive of a property owner by arresting a member of the public giving voice

to his views on a matter of public policy while standing on the property owner’s premises. We 8

know that among the prices paid in our complicated society is that neither of these values enjoy

unfettered expression. When they butt heads – and when the state is faced with weighing the

balance between them – the fineness of the lines that must be drawn is unescapable. 

Although the right to possess and use property undeniably and quite properly is one of

“the Hallmarks of Western Civilization,” Andress v. Zoning Board of Adjustment of

Philadelphia, 188 A.2d 709, 713-14 (Pa. 1963), and a dearly valued and protected right in our

democracy, see New York Times v. Sullivan, 376 U.S. 254, 270 (1964), this right is not absolute,

Euclid v. Ambler Realty Co., 272 U.S. 365, 390-93 (1926); Commonwealth v. Tate, 432 A.2d

1382, 1389 (Pa. 1981). It is subject to the reasonable and nondiscriminatory exercise of police

power and the appropriate accommodation of the right to freedom of expression. See Tate, 432

A.2d at 1389. The government may, when necessary, protect personal liberties even when that

protection, to a limited extent, subordinates the constitutional interests of others. Zacchini v.

Scripps-Howard Broadcasting Co., 433 U.S. 562, 575-78 (1977); see also PruneYard Shopping

Ctr. v.Robins, 447 U.S. 74, 81 (1980) (“It is, of course, well-established that a state in the

exercise of its police powers may adopt reasonable restrictions on private property so long as the

restrictions do not amount to a taking without just compensation . . . .”). Nonetheless, the owner

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 10 of 31
11

of private property is “entitled to fashion reasonable rules to control the mode, opportunity and

site for the individual exercise of expressional rights upon his property.” Tate, 432 A.2d at 1390. 

In evaluating the reasonableness of a condition, courts have focused on the totality of the

circumstances, including the nature of the private property, the nature of the condition and the

specific circumstances at the time.

In Commonwealth v. Tate, a private college sponsored a community anti-crime

symposium, which included a speech by then FBI Director Clarence Kelley. Both the campus

and the symposium were open to the public, and the appellants sought to protest peacefully

against Director Kelley and FBI policies in general. The college required political demonstrators

or solicitors to obtain a permit, which the appellants sought and the college denied. The

appellants nevertheless entered the campus to distribute leaflets outside the event, were arrested

and, ultimately, were convicted of defiant trespass. The Pennsylvania Supreme Court reversed

the criminal convictions on the grounds that the college had created a public forum by permitting

public access to the campus and hosting public events for the benefit of the community. In

particular, at the time the appellants were arrested, the college had provided a public forum for a

controversial figure. The court held that,

[i]n these circumstances, the college could not, consistent with the

invaluable rights to freedom of speech, assembly, and petition

constitutionally guaranteed by this Commonwealth to its citizens,

exercise its right of property to invoke a standardless permit

requirement and the state’s defiant trespass law to prevent

appellants from peacefully presenting their point of view to this

indisputably relevant audience in an area of the college normally

open to the public

Tate, 432 A.2d at 1390-91. Following the rationale behind the statutory affirmative defense, the

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 11 of 31
12

court adopted a balancing approach, weighing “the college’s right to possess and protect its

property against appellants’ rights of expression in light of the compatibility of that expression

with the ‘activity of [the] particular place at [the] particular time.’” Id. at 1390 (quoting Grayned

v. City of Rockford, 408 U.S. 104, 116 (1972)). Applying this approach, the Tate court

determined that the appellants’ peaceful demonstration was entirely compatible with a political

event hosted by a college campus that was generally open to the public.

By contrast, in Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut

General Life Insurance Company, 515 A.2d 1331 (Pa. 1986), where the appellants sought to

enjoin a private mall from enforcing its policy of prohibiting all political solicitation, the

Pennsylvania Supreme Court held that “the Pennsylvania Constitution does not guarantee access

to private property for the exercise of such rights where, as here, the owner uniformly and

effectively prohibits all political activities and similarly precludes the use of its property as a

forum for discussion of matters of public controversy.” Id. at 1333 (emphasis added). In other

words, by strictly and uniformly prohibiting political solicitation, a mall may operate as “a

market place for the exchange of goods and services but not as a market place for the exchange

of ideas.” Id. at 1337.

Federal courts have labored to apply these general principles in addressing the issue of

probable cause and the affirmative defenses to defiant trespass. In Radich, for example, pro-life

demonstrators were arrested when they entered a private parking lot to distribute pro-life

literature and speak to individuals entering an abortion clinic. The parking lot was delineated by

a line painted on the ground and was marked with a sign stating that the lot was private property

and denying protestors permission to enter. In that case, as here, the arresting police officer

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 12 of 31
13

asked the demonstrators to leave the property before arresting and charging them with defiant

trespass. Relying on the statutory affirmative defense and arguing that the “no protesting” policy

was unlawful, the demonstrators sued the police officer and the City of Philadelphia for arrest

without probable cause.

The Court of Appeals did not reach the question of the legality of the “no protesting”

condition imposed by the parking lot owner because it held that “the legality of the condition

imposed is not readily discernable to a police officer making arrests or city official formulating a

policy to enforce private trespass rights. Radich, 886 F.2d at 1398. The Court distinguished

Tate, noting that Tate “rested on the premise that the property at issue was a forum either created

for or compatible with expressive activity.” Id. at 1397 (citing Tate, 432 A.2d at 1389). The

parking lot in question in Radich, emphasized the court, was “dedicated not to expressive

activity, but to the temporary storage of motor vehicles” and such a parking lot “used only for

commercial purposes bears no resemblance to a college campus that has opened its doors to

general debate, or even a shopping mall, where pedestrians assemble and stroll at leisure.” Id. 

Under these circumstances, the court refused to impose upon a police officer or city official

authorizing the arrest policy “the duty to correctly predict how a court will answer this

unresolved and complex legal issue.” Id.

Similarly, in United Food and Commerical Workers Union Local 72 v. Borough of

Dunmore, 40 F. Supp. 2d 576 (M.D. Pa. 1999), which concerned the arrest of nonemployee

union workers who knowingly violated a supermarket’s “no-solicitation” policy, the court

concluded that “Pennsylvania law is in an uncertain state in relation to defiant trespass based

upon violation of a no solicitation policy.” Accordingly, the court held that “as long as there is

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 13 of 31
 See Clark v. Modern Group, 9 F.3d 321, 326 (3d Cir. 1993) (when state law is unclear, 9

federal courts “must forecast the position the supreme court of the forum would take on the

issue”). The Court emphasizes that this case does not involve a property owner’s effort to invoke

the subject condition inside the facility where the invitation-only guests gathered. 

14

some reasonable basis for believing that a no-solicitation policy is enforceable, a reasonable

police officer has probable cause for an arrest for defiant trespass where a union member

knowingly violates the no solicitation policy.” Id. at 590-91.

Taken together, these cases establish a number of principles governing the lawfulness of

conditions prohibiting expressive activity such as that pursued by Dr. Lischner on private

property on the occasion of the President’s car’s arrival at Drexelbrook. First, the Court must

look to whether the specific part of the private property, by its nature or by the purpose for which

members of the public are permitted enter, creates a forum for, or is compatible with, expression. 

See Radich, 886 F.2d 1397. Second, the Court must evaluate whether the expressive activity at

issue is compatible with the particular purpose of the forum at the particular time the expressive

activity occurs. See Tate, 432 A.2d at 1390. Third, the Court must acknowledge that a contentneutral condition is more likely to be lawful than a content-based condition. Western

Pennsylvania, 515 A.2d at 1333. Finally, the Court must apply a fact-specific, totality-of-thecircumstances approach that takes all of these factors, as well as the property owner’s rights, into

consideration.

Applying these principles here, the Court concludes that the condition as imposed by

Drexelbrook in this instance was unlawful. This case concerns a political event in a private 9

residential community that is generally open to the public – a very different scenario than a

supermarket’s no-solicitation policy, a parking lot owner’s no-protesting rule, or a shopping

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 14 of 31
15

mall’s prohibition on political solicitation. The purposes for which the property owners invited

the public to enter the supermarket or mall were strictly commercial: shopping and, at the mall,

also dining and entertainment. The purpose of public entry onto the clinic parking was even

more limited: the temporary storage of vehicles. In sharp contrast to those locations are the

college campus in Tate and the multi-use community in the present matter, where the property

owner hosted an elected and political national public figure, and permitted the public onto the

exterior property and invited guests into the interior of the property, all in association with that

event.

The Defendants here endeavor to make much of the fact that the college landowner in

Tate provided a public forum while Drexelbrook hosted a private, invitation-only event for

contributors to President Bush’s upcoming election efforts, not a public “speech.” The Supreme

Court, however, has held that both the solicitation of funds and the act of contributing are

expressive activities protected by the First Amendment. See McConnell v. Federal Election

Comm’n, 540 U.S. 93, 135-36 (2003); Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 386

(2000) (The “constitutional guarantee” of the First Amendment “‘has its fullest and most urgent

application precisely to the conduct of campaigns for political office.’”) (quoting Buckley v.

Valeo, 424 U.S. 1, 15 (1976)); Village of Schaumburg v. Citizens for a Better Environment, 444

U.S. 620, 632 (1980) (holding that solicitation of financial funding “is characteristically

intertwined with informative and perhaps persuasive speech seeking support for particular causes

or for particular views on economic, political, or social issues”); Buckley, 424 U.S. at 22

(“Making a contribution, like joining a political party, serves to affiliate a person with a

candidate. In addition, it enables like-minded persons to pool their resources in furtherance of

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 15 of 31
16

common political goals.”). Although the attendees at the Drexelbrook event had already

contributed to the President’s campaign, the Defendants nonetheless characterize the event as “a

private, invitation-only dinner held for the specific purpose of raising money for President Bush’s

campaign” (Def. Response 14), where President Bush “sought only funds from invited supporters

for the specific purpose of winning his election” (Def. Response 15). Because it was, by the

Defendants’ own description, organized as part of an effort to win a political campaign, the

Drexelbrook event was an inherently political and expressive activity. The distinction between

the public address (a “speech,” as defined by the Defendants) or public forum in Tate and the

“private fund-raiser” here is less important than the fundamentally political nature of both kinds

of events and the intended audience of the expressive activity. In short, this case does not pose a

situation such as if the President had come to attend a truly private event such as, for example, a

friend’s birthday party.

Moreover, as Officer Kehrle understood it and testified in his deposition, Drexelbrook

welcomed members of the public onto the property “to observe the President’s motorcade and

catch a glimpse of the President.” (Kehrle Dep. 42-43.) This distinguishes the private event on

that day from a private or personal event, such as wedding, where all uninvited members of the

public are or could be excluded from the property. By opening up its property to the public in

conjunction with hosting a significant political figure, Drexelbrook created and promoted a

public feature to the private event and, in doing so, created a forum compatible with expressive

activity.

Second, the quiet and peaceful display of signs or messages was not incompatible with

the circumstances of the President’s visit to Drexelbrook. The public was permitted to enter the

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 16 of 31
 The Court rejects the Defendants’ argument that the public sidewalks surrounding 10

Drexelbrook, which were designated for protestors and sign-carriers, provided a reasonable

alternative for communication of Dr. Lischner’s ideas. As the Pennsylvania Supreme Court

noted in Tate, in the absence of time, place and manner restrictions, the refusal of Drexelbrook to

permit the peaceful display of signs “cannot be sustained by the argument that [Dr. Lischner]

could have reached the same audience elsewhere.” Tate, 432 A.2d at 1391 n.15.

 There is a genuine issue of fact here as to whether the Drexelbrook policy excluded 11

only anti-President or anti-President policies protesters or all “protesters,” or “advocates,” within

the broadest meaning of the word. Accordingly to William Jay, a representative of Drexelbrook

Associates, “on September 15, 2003, ‘Drexelbrook Associates’ did not permit the general public

to display signs or otherwise engage in political protest on its aforementioned property.” (Jay

Affidavit at ¶ 9.) Officer Kehrle, however, has testified that he was instructed to remove from

the property all persons displaying “any signs,” i.e., the instruction was not tied to political

message. (Kehrle Dep. at 14.) The record is simply silent as to whether any pro-President signs

were permitted.

17

property; an area was specifically designated for public to view the President’s motorcade; and

the relevant audience was both members of the public who support the President and the 10

President himself. There is no evidence in the record that Dr. Lischner in any way caused a

disturbance, harassed or bothered other members of the public, or orally vocalized his message in

any way. Indeed, with the exception of the text-laden sign on his chest, the record suggests that

Dr. Lischner was virtually indistinguishable from other members of the crowd. In reality, the

record suggests that by virtue of its size, the sign’s lengthy message was unreadable from any

appreciable distance.

Third, as with the permit requirement in Tate, the condition imposed was arguably

content-neutral. Nonetheless, argues Dr. Lischner, by hosting the President in conjunction with 11

efforts to win a political campaign for public office, Drexelbrook provided a forum to one side of

the debate and, therefore, could not exclude the other. While the Pennsylvania Supreme Court

unequivocally declined to require the owners of private property, such as malls, to serve as a

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 17 of 31
18

political forum, it explicitly conditioned this holding on the uniform application of a ban on

political solicitation. See Western Pennsylvania, 515 A.2d at 1336 (shopping malls not required

to provide a political forum so long as the owner “does not grant unfair advantage to particular

interests or groups by making his premises arbitrarily available to those he favors while

excluding all others”). As discussed above, the political, rather than personal, nature of the

event, in conjunction with the admission of the public onto portions of the property, including the

portion where Dr. Lischner was located, rendered the President’s gathering an expressive

activity. Thus, Drexelbrook’s ban on signs or protesting outside the facility at such an event and

at such a time when it welcomed non-sign-bearing and non-“protesting” members of the public

onto its property falls squarely within the purview of Tate and Western Pennsylvania, both of

which prohibit such discrimination.

Although the Court understands and acknowledges Drexelbrook’s desire to avoid

disruptive protests during the President’s visit, under applicable law it cannot sanction the “no

signs or protesting” policy under these circumstances. Here, as in Tate, Dr. Lischner “wished to

communicate peacefully and unobtrusively – in an area normally open to the public – to those

assembled,” and, therefore, “the absolutely fundamental rights of the public to freedom of

political speech and petition for redress of grievances were clearly implicated.” See Tate, 432

A.2d at 1390. Once it opened its doors to the President and others in the context of a hotly

contested political campaign and to members of the public, Drexelbrook could not then

selectively exclude persons who wished to peacefully “petition for redress” in a most unobtrusive

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 18 of 31
 Indeed, it bears emphasizing that Dr. Lischner created no security or sensibilities risk 12

here, either to himself or to others; indeed, Officer Kehrle candidly expressed his own

reservations that he was hesitant to arrest him, and went to great lengths to charge him with a

lesser offense. Even after Dr. Lischner “repeatedly refused to comply” with Officer Kehrle’s

request, Officer Kehrle did not immediately arrest him. (Def. Mem. 3.) Rather, Officer Kehrle

“sought out and consulted with the (then) head of ‘Drexelbrook Associates’ private security” and

did not place Dr. Lischner under arrest until asked by Drexelbrook personnel to remove Dr.

Lischner from the property. (Id.; see also Kehrle Dep. at 20 (“I more or less pleaded with [the

Drexelbrook representative], you know, it was kind of ridiculous, it was minor.”).) Then, “at the

police station, Defendant Kehrle flipped through the crimes code and stated: ‘I’m trying to find

something that won’t be too hard on you.’” (Def. Mem. 3.) When asked why he charged Dr.

Lischner with disorderly conduct, Officer Kehrle testified that “[i]t doesn’t make sense to charge

a 75-year old man with a Misdemeanor. I tried to give him a break.” (Kehrle Dep. 35.)

19

way – by quietly displaying a small sign. Accordingly, the Court concludes that the “no signs 12

or protesting” condition imposed by Drexelbrook in these circumstances was unlawful. 

In the context of the probable cause issue at hand, the Court next must determine whether

a reasonable police officer applying these principles would have known whether Drexelbrook’s

condition was unlawful. Relying again on Radich, Officer Kehrle contends that he was not

obligated to predict how Pennsylvania courts would decide an affirmative defense raised by Dr.

Lischner and that, in any event, Pennsylvania law is not sufficiently clear for a reasonable police

officer to discern the lawfulness of a condition. Dr. Lischner, in turn, contends that under the

circumstances presented here, there was no reasonable basis for believing that the Drexelbrook

policy was enforceable.

The Court disagrees. The record established thus far raises a genuine issue as to whether

a reasonable police officer should have known Drexelbrook’s policy was unlawful. There is no

doubt that the law of criminal defiant trespass and the question of probable cause is very factCase 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 19 of 31
 This fact-specific nature, however, does not detract from the clarity of its underlying 13

principles. Under certain circumstances, the unlawfulness of a property owner’s condition could

be sufficiently apparent for a reasonable police officer to know that an individual has not

committed defiant trespass by failing to comply with that condition.

 The Defendants’ concern that “there will be numerous instances where police officers,

14

through no fault of their own, will not be privy to information essential to the analysis”

misunderstands judicial review of the probable cause determination. That review is dictated by

the “facts and circumstances within the arresting officer’s knowledge” at the time of arrest. See

Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000). A police officer’s

probable cause determination will not be evaluated on the basis of facts of which the officer was

not aware at the time of arrest. Rather, the Court holds today only that if the police officer is

aware of the facts and circumstances establishing an affirmative defense to defiant trespass, he

or she should know that a crime is not being committed. Thus, if a police officer, as in the

Defendant’s hypothetical, is unaware of “how the property owner holds the property out to the

public,” “the complete nature of any hosted event,” or “whether the property owner somehow

encouraged public participation in a newspaper article,” his or her probable cause determination

20

specific. Here, the record supports a finding by a reasonable jury that, under the instant 13

circumstances, the illegality of the Drexelbrook policy was sufficiently well-established that a

reasonable police officer would have known it was unlawful. However, a jury also could

rationally find that, given the facts and circumstances known to Officer Kehrle, there was a

reasonable basis for believing the condition was lawful. Thus, probable cause remains a genuine

issue for trial, and the Court declines to hold as a matter of law on this record as presently

presented that Officer Kehrle had an insufficient reason to know that such a condition under such

circumstances was unlawful.

The Court is fully cognizant of the difficulty facing a police officer in Officer Kehrle’s

position. Nonetheless, police officers are entrusted with the significant powers, including the

power to arrest, a power that it is specifically limited by the doctrine of probable cause, which is

derived directly from the text of the Fourth Amendment. For this limitation to operate

effectively, police officers must know the law. To adopt the Defendant’s argument that 14

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 20 of 31
will be evaluated without consideration of those facts. The Court today limits its holding to the

facts and circumstances presented here – facts and circumstances which fairly establish Dr.

Lischner’s affirmative defense and raise a genuine issue as to whether Officer Kehrle should

have known that the condition sought to be imposed was unlawful.

 The Supreme Court observed that “[A] function of free speech under our system of 15

government is to invite dispute. It may indeed best serve its high purpose when it induces a

condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to

anger. It may strike at prejudices and preconceptions and have profound unsettling effects as it

presses for acceptance of an idea. That is why freedom of speech, though not absolute . . . is . . .

protected against censorship or punishment . . . . There is no room under our Constitution for a

more restrictive view. For the alternative would lead to standardization of ideas either by

legislatures, courts, or dominant political or community groups.” Cox v. Louisiana, 379 U.S.

536, 551-52 (1965); see also Roth v. United States, 354 U.S. 476, 484 (1957) (“protection given

speech and press was fashioned to assure unfettered interchange of ideas for the bringing about

of political and social changes desired by the people”). Both the Supreme Court of United States

and the Supreme Court of Pennsylvania have embraced the “profound national commitment to

the principle that debate on public issues should be uninhibited, robust, and wide-open.” Tate,

432 A.2d at 1388) (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964)). 

21

Pennsylvania law is unclear in all cases involving “expressive activity on private property that is

open to the public” is to misconstrue Radich and jeopardize a most fundamental right. If the 15

law of defiant trespass in Pennsylvania is so unclear that a police officer need never consider

whether the condition he or she is enforcing is lawful, then the right to freedom of expression on

private property, which was deemed worthy of statutory protection by the Pennsylvania

legislature, see 18 Pa. C.S. § 3503(c)(2), has acquired an inexorable and expensive price tag:

arrest and detention.

Moreover, if courts never reach the question of whether a property owner’s ban on

expressive activity is lawful in the context of reviewing probable cause, the law will never

achieve any greater clarity, and the affirmative defense – which negates the criminality or

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 21 of 31
 In Pennsylvania, “an affirmative defense is defined as one where the defendant admits 16

his commission of the act charged, but seeks to justify or excuse it.” Commonwealth v. White,

492 A.2d 32, 35 (Pa. Super. Ct. 1985).

 The issue of qualified immunity must be resolved at the earliest possible time because

17

the privilege will be effectively lost if the case is erroneously permitted to go to trial. Bennett v.

Murphy, 274 F.3d 133, 136 (3d Cir. 2001).

22

wrongfulness of the act – will in most cases protect only against conviction, not against the 16

potential inconvenience and stigma of arrest. Neither Radich nor any other case cited by the

Defendants or discovered by the Court commands or condones such a result.

2. Qualified Immunity

Officer Kehrle also invokes the defense of qualified immunity, which shields government

officials performing discretionary functions from liability whenever “their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” McGreevy v. Stroup, 413 F.3d 359, 364 (3d Cir. 2005) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Since qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law,” Blackhawk v. Pennsylvania, 381 F.3d 202,

215 (3d Cir. 2004), a determination that probable cause was lacking does not require a finding

that the arresting officer is liable for damages, Paff v. Kaltenbach, 204 F.3d 425, 436 (3d Cir.

1999). As the Supreme Court explained, “it is inevitable that law enforcement officials will

mistakenly conclude that probable cause is present, and we have indicated that in such cases

those officials – like other officials who act in ways they reasonably believe to be lawful – should

not be held personally liable.” Anderson v. Creighton, 483 U.S. 635, 641 (1987).17

“Because the focus is on whether the officer had fair notice that her conduct was

unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.”

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 22 of 31
23

Brosseau v. Haugen, 543 U.S. 194, 198 (2004); see also Paff, 204 F.3d at 431 (“A court

presented with a claim of qualified immunity must examine both the law that was clearly

established at the time of the alleged violation and the facts available to the officer at that time,

and must then determine, in light of both, whether a reasonable official could have believed his

conduct was unlawful.”). Where qualified immunity is raised as a defense, its availability is “an

objective question to be decided by the court as a matter of law.” Carswell v. Borough of

Homestead, 381 F.3d 235, 242 (3d Cir. 2004).

The Court first must determine whether, taken in the light most favorable to the party

asserting the injury, the facts alleged show a constitutional violation. Sherwood v. Muvihill, 113

F.3d 396, 401 (3d Cir. 1997); see also Saucier v. Katz, 533 U.S. 194, 201 (2001) (holding that

existence or nonexistence of a constitutional right is the first inquiry). If the plaintiff cannot

show a constitutional violation, the officer is entitled to qualified immunity.

If, however, the plaintiff demonstrates that a constitutional injury occurred, the court must

determine whether the constitutional right was “a clearly established one, about which a

reasonable person would have known.” McGreevy, 413 F.3d at 364 (quoting Gruenke v. Seip,

225 F.3d 290, 298 (3d Cir. 2000)). “Clearly established” means “some but not precise factual

correspondence between relevant precedents and the conduct at issue,” although “officials need

not predict the future course of constitutional law.” McLaughlin v. Watson, 271 F.3d 566, 571

(3d Cir. 2001). The “salient question” is whether the law at the time of the incident gives a

defendant “fair warning” that the defendant’s conduct was unconstitutional. Hope v. Pelzer, 536

U.S. 730, 741 (2002) (citing United States v. Lanier, 520 U.S. 259 (1997)). See also Rivas v.

City of Passsaic, 365 F.3d 181, 200 (3d Cir. 2004) (quoting Hope, 536 U.S. at 741) (“[I]n some

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 23 of 31
24

cases ‘a general constitutional rule already identified in the decisional law may apply with

obvious clarity to the specific conduct in question, even though the very action in question has

[not] previously been held unlawful.’”).

 With respect to the initial inquiry, Dr. Lischner has presented sufficient evidence to, at a

minimum, raise a genuine issue as to whether a constitutional violation occurred. Assuming,

arguendo, the existence of a constitutional violation, the Court must determine whether the

constitutional right in question was “clearly established” such that a reasonable law enforcement

officer could have believed that his conduct was lawful under the circumstances. Blackhawk,

381 F.3d at 215. 

Mindful that the inquiry “must be undertaken in light of the specific context of the case,

not as a broad general proposition,” Brosseau, 543 U.S. at 198 (quoting Saucier, 533 U.S. at

201), the Court finds that even if Officer Kehrle did not have probable cause to arrest Dr.

Lischner, under the circumstances presented here, he is entitled to qualified immunity. A

reasonable person, having received orders from a supervisor in advance, could have concluded

that the condition he was enforcing was lawful. Officer Kehrle’s choice to accept orders from his

superiors in the Police Department and then reiterated by the property owner was not

unreasonable and “suggests neither that he was incompetent nor that he knowingly violated the

law.” Paff, 204 F.2d at 437. Officer Kehrle not only confronted a situation in which probable

cause was a very close call; he also had received explicit orders in advance on how to make that

call. Confronted with a clear violation of the policy imposed by Drexelbrook and adopted by the

Upper Darby Police Department, it would not necessarily be clear to a reasonable police officer

that enforcing the policy was unlawful. See Brosseau, 543 U.S. at 199 (“The relevant dispositive

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 24 of 31
25

inquiry in determining whether a right is clearly established is whether it would be clear to a

reasonable police officer that his conduct was unlawful in the situation he confronted.”). In other

words, even if Officer Kehrle objectively did not have probable cause to arrest, it was objectively

reasonable for him in the actual circumstances to accept the judgment of the Upper Darby Police

Department.

Thus, the Court finds that Officer Kehrle is protected by the doctrine of qualified

immunity with respect to Dr. Lischner’s Fourth Amendment claim and may not be held

personally liable. Therefore, the Court will grant summary judgment in favor of Officer Kehrle

on all counts and deny Dr. Lischner’s Motion for Partial Summary Judgment. 

B. Monell Claims Against Upper Darby

Under Monell v. Department of Social Services, 436 U.S. 658 (1978), a municipality is

liable for damages under Section 1983 when a policy, practice or custom of the municipality

causes a constitutional violation. Id. at 691. In order to recover from a municipality under

Section 1983, a plaintiff must “(1) identify a policy or custom that deprived him or her of a

federally protected right, (2) demonstrate that the municipality, by its deliberate conduct, acted as

the ‘moving force’ behind the alleged deprivation, and (3) establish a direct causal link between

the policy or custom and the plaintiff’s injury.” Startzell v. City of Philadelphia, No. 05-5287,

2007 WL 172400 (E.D. Pa. Jan. 18, 2007) (citing Bd. of the County Comm’rs v. Brown, 520

U.S. 397, 404 (1997)). Alternatively, a plaintiff may recover under Section 1983 “where the

failure to train amounts to deliberate indifference to the rights of persons with whom the police

come into contact.” City of Canton v. Harris, 489 U.S. 378, 387-88 (1989); Brown v.

Muhlenberg Twp., 269 F.3d 205, 215 (3d Cir. 2001).

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 25 of 31
26

A municipal “policy” is a “statement, ordinance, regulation, or decision officially adopted

and promulgated by [a government] body’s officers.” Monell, 436 U.S. at 690. A “policy”

within the meaning of Section 1983 “implies a course of action consciously chosen from among

various alternatives,” Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). See also Berg v.

County of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000) (“Policy is made when a ‘decisionmaker

possessing final authority to establish municipal policy with respect to the action’ issues an

official proclamation, policy, or edict.”)(citation omitted). A plaintiff need only demonstrate a

likelihood of resultant constitutional violations, not necessarily a long-standing practice; a

single incident of unconstitutional conduct on the part of municipality is sufficient to establish

municipal liability under Monell. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)

(holding that “where action is directed by those who establish governmental policy, the

municipality is equally responsible whether that action is to be taken only once or to be taken

repeatedly”).

Upon proof of the existence of a policy, practice, or custom, the plaintiff can establish

causation by “demonstrat[ing] that the municipal action was taken with ‘deliberate indifference’

as to its obvious consequences.” A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Ctr.,

372 F.3d 572, 580 (3d Cir. 2004). Once the plaintiff has made the necessary showing, and so

long as the causal link is “not too tenuous,” the question “whether the municipal policy or

custom proximately caused the constitutional infringement should be left to the jury.” A.M., 372

F.3d at 581.

To defeat summary judgment on a “failure to train” theory, a plaintiff “must present

evidence that the need for more or different training was so obvious and so likely to lead to the

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 26 of 31
27

violation of constitutional rights that the policymaker’s failure to respond amounts to deliberate

indifference.” Brown, 269 F.3d at 215. Although “deliberate indifference” ordinarily may be

established “only where the failure has caused a pattern of violations,” a pattern of violations is

not necessary “where it was obvious that the policy or custom would lead to constitutional

violations.” Berg, 219 F.3d at 275 (citing Brown, 520 U.S. at 405). 

Dr. Lischner alleges that Upper Darby should be held liable for his injuries because (1) on

the day of the President’s visit at Drexelbrook, Upper Darby had an affirmative policy of

supporting the unlawful Drexelbrook approach to the event by instructing its officers to arrest

persons displaying signs on the property, notwithstanding the fact that there would be no

probable cause to effect such arrests, and/or (2) that Upper Darby failed to train its officers

concerning the contours of the law of defiant trespass.

First, it is undisputed that it was the affirmative “policy” of Upper Darby on the day of

the President’s visit to defer to the property owner’s declaration of permissible activity and arrest

members of the public holding signs or otherwise “protesting” on Drexelbrook property. Officer

Kehrle testified that, in arresting Dr. Lischner, he was acting pursuant to instructions from the

Upper Darby Police Department, specifically that “there were to be no protesters or signs

displayed on the private property” and that “if they didn’t agree to leave or remove the signs we

were supposed to arrest them.” (Kehrle Dep. at 13, 18.) The Defendants admit that “Sergeant

Parsons instructed Defendant Kehrle to enforce the policy of Drexelbrook Associates that

demonstrators could not display signs on its property” and that Officer Kehrle “was authorized to

arrest demonstrators displaying signs on Drexelbrook who refused to cease displaying signs, after

sufficient notice, refused to leave the private property.” (Defendants’ Response to Statement of

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 27 of 31
 The Court recognizes that “[p]roof of a single incident of unconstitutional activity is 18

not sufficient to impose liability under Monell, unless proof of the incident includes proof that it

was caused by an existing, unconstitutional municipal policy . . . .” Oklahoma City, 471 U.S. at

823-24. Here, the record can support a finding both that the incident occurred and that it was

caused by an existing, unconstitutional municipal policy of deference to a property owner

invoking an unlawful restriction on members of the public. 

28

Facts, ¶¶ 9, 10.) Since the “no signs or protesting” policy was unlawful, a rational trier of fact

may find that Upper Darby’s policy called for the unlawful arrest of persons not engaged in

criminal activity, and, therefore, caused Dr. Lischner’s constitutional injury.18

Second, the record also may support a finding that Upper Darby’s failure to sufficiently

train its officers amounts to deliberate indifference on the part of Upper Darby with respect to

enforcement of the defiant trespass statute. Although Officer Kehrle testified that Upper Darby

provides annual training that covers changes in Pennsylvania’s criminal statutes, he also testified

that he has received no training specifically concerning the law governing “defiant trespass” or

the meaning of “open to the public” and “lawful condition” as those terms are used in the defiant

trespass statute. (Kehrle Dep. at 48-50.) Officer Kehrle also testified that Upper Darby had not

provided any training concerning the parameters of the right to engage in political expression,

which is central to the question of what constitutes a lawful condition under the defiant trespass

statute. (Id. at 46.) When viewed in a light most favorable to Dr. Lischner, as the Court must

view the record at this junction, there is sufficient evidence to create a genuine question of fact as

to whether Upper Darby’s failure to train its officers amounted to “deliberate indifference” in the

face of likely constitutional violations.

C. False Arrest and False Imprisonment Claims Against Officer Kehrle

Since Officer Kehrle is entitled to qualified immunity, he cannot be held personally liable

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 28 of 31
29

for any damages arising out of Dr. Lischner’s arrest. Therefore, the Court will enter summary

judgment in favor of Officer Kehrle on these claims as well and deny Dr. Lischner’s Motion for

Partial Summary Judgment.

CONCLUSION

For the foregoing reasons, summary judgment in favor of Officer Kehrle is granted on all

counts. Summary judgment is denied with respect to Dr. Lischner’s Monell claims against Upper

Darby. Dr. Lischner’s Motion for Partial Summary Judgment is denied. An appropriate Order

consistent with this Memorandum follows.

BY THE COURT:

S/Gene E.K. Pratter

GENE E.K. PRATTER

UNITED STATES DISTRICT COURT

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 29 of 31
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HAROLD LISCHNER, : CIVIL ACTION

Plaintiff, :

 :

 :

v. :

 :

 :

UPPER DARBY TOWNSHIP and :

MICHAEL KEHRLE, :

Defendants : NO. 05-4546

O R D E R

AND NOW, this 5th day of February, 2007, upon consideration of the Defendants’

Motion for Summary Judgment (Docket No. 11), the Plaintiff’s response thereto (Docket No.

13), the Plaintiff’s Motion for Partial Summary Judgment (Docket No. 13), the Defendants’

Response thereto (Docket No. 14) and the Plaintiff’s Reply (Docket No. 16), it is hereby

ORDERED that the Defendants’ Motion is GRANTED IN PART and DENIED IN PART, and

the Plaintiff’s Motion is DENIED, as follows:

1. Defendants’ Motion (Docket No. 11) is GRANTED as to Officer Michael Kehrle with

respect to all counts in the Complaint;

2. Defendants’ Motion for Summary Judgment is DENIED as to the claims against Upper

Darby Township;

3. Plaintiff’s Motion (Docket No. 13) is DENIED;

4. Plaintiff’s First Amendment and Invasion of Privacy claims are DISMISSED; and

5. Plaintiff’s claims brought pursuant to Article I, §§ 1, 7 and 8 of the Pennsylvania

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 30 of 31
2

Constitution are DISMISSED.

BY THE COURT:

S/Gene E.K. Pratter

GENE E.K. PRATTER

UNITED STATES DISTRICT JUDGE

Case 2:05-cv-04546-JS Document 21 Filed 02/05/07 Page 31 of 31